In re J.S., 377 N.C. 73 (2021)

  • Facts: The children were adjudicated neglected in part due to circumstances created by father’s substance use and criminal activity related to trafficking drugs. As part of that neglect action, DSS file a TPR motion. At the time of the TPR hearing, father was incarcerated with a sentence of 28 years. The TPR was granted on the grounds of neglect and failure to make reasonable progress. Father appeals, and this opinion addresses the neglect ground. Father challenges the court’s determination that there is a likelihood of future neglect.
  • G.S. 7B-1111(a)(1) authorizes a TPR when there is current neglect or “in the absence of current neglect, the trial court may adjudicate neglect as a ground for termination based upon its consideration of any evidence of past neglect and its determination that there is a likelihood of future neglect if the child is returned to the parent.” 377 N.C. at 78.
  • Incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.” 377 N.C. at 79. However, it may be relevant and “depends upon an analysis of the relevant facts and circumstances, including the length of the parent’s incarceration.” Id. (emphasis in opinion). Here, without evidence or findings that father’s circumstances might change, it was reasonable for the court to expect his incarceration would last past the children reaching the age of majority. His lengthy incarceration “implicates a future likelihood of neglect, as respondent cannot provide ‘proper care, supervision, or discipline’ while he is incarcerated.” 377 N.C. at 80. This opinion recognizes that during a parent’s incarceration “constructive and positive parenting can occur, and parent/child bonds can be meaningful.” 377 N.C. at 80. However, here the trial court’s unchallenged findings about father’s use of illegal substance and acts of domestic violence while in the children’s presence, lack of care to the children when he wasn’t incarcerated, lack of progress on his case plan, inappropriate and/or lack of phone calls to the children when he was incarcerated support the determination of a likelihood of future neglect.
Termination of Parental Rights
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